Ratheesh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 16TH DAY OF JUNE 2016/26TH JYAISHTA, 1938** **Crl.Rev.Pet.No. 523 of 2005 (A)** **--------------------------------** **AGAINST THE JUDGMENT IN CRA NO.312/2003 OF ADDITIONAL SESSIONS JUDGE, THODUPUZHA DATED 08-12-2004** **AGAINST THE JUDGMENT IN CC NO.257/2001 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -II,THODUPUZHA DATED 17-11-2003** **---------------------------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **-------------------------------------------------------------------** **RATHEESH, S/O.GOPALAKRISHNAN, PUTHENPURACKAL VEEDU, PANDARAMKUNNU, VANNAPURAM.** **BY ADVS.SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.SONIYA.M SRI.N.A.SHAFEEK** **RESPONDENT(S)/COMPLAINANT: ----------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. V.P.SATHI** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **-------------------------------Crl. R.P. No.523 of 2005 ---------------------------------Dated this the 16[th] day of June, 2016** ## **O R D E R** This revision petition is filed by the accused against the concurrent finding in Criminal Appeal No.312 of 2003 of the Additional Sessions Judge, Thodupuzha. The accused was charge sheeted in C.C. No.257 of 2001 before the Judicial First Class Magistrate Court-II, Thodupuzha for having committed the offence punishable under Sec.394 of the Indian Penal Code (hereinafter referred to as IPC for short). The learned Magistrate convicted the accused under Sec.394 IPC and sentenced him to rigorous imprisonment for two years and fine of Rs.2,000/- (Rupees two thousand only) in default of payment of fine, simple imprisonment for three months. Against that, he preferred the above Criminal Appeal before the Additional Sessions Judge, Thodupuzha, where the appellate court dismissed the appeal. Being aggrieved by that, he preferred this revision. 2. The charge against the accused is that on Crl. R.P. No.523 of 2005 2 06.11.2000 between 7 p.m. and 8 p.m., he was traveling in a motor bike bearing No.KL-I-8935 as a pillion rider with PW1 along the Thodupuzha-Vannappuram public road and when they reached at Kaliyar, an isolated place, the accused hit PW1 with a grinder stone on the right side. As a result, Varghese (Joshy) sustained injury. Kaliyar Police registered a crime and after completing investigation, laid charge before the Judicial First Class Magistrate Court-II, Thodupuzha. In pursuance of the charge, prosecution examined PW1 to PW7 and marked Exts.P1 to P4. The granite stone was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. Heard both sides. The main contention advanced by the learned counsel appearing for the revision petitioner is that there was no attempt to commit robbery. Medical evidence is not corroborating the evidence of PW1. Moreover, there is no independent evidence. 4. The allegation in this case is that the revision Crl. R.P. No.523 of 2005 3 petitioner voluntarily caused hurt while committing robbery. Robbery is defined under Sec.390 IPC as an aggravated form of either theft or extortion, which reads as follows: ## “ **390- Robbery-In all robbery there is either theft or extortion** . When theft is robbery. Theft is “robbery” if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily caused or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or on instant hurt, or of instant wrongful restraint. When extortion is robbery.- Extortion is “robbery” if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. ” Therefore, it is clear that there cannot be any robbery without theft or extortion. For attracting both these offences dishonesty is an essential ingredient attributed against a person. If there is no dishonesty in an act, there can be no offence of theft or extortion and there cannot Crl. R.P. No.523 of 2005 4 be any offence of robbery. One of the essential ingredient to constitute the offence of robbery is that the offender should have caused death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. For identifying a dishonest intention and the proof regarding theft, I have gone through the oral and documentary evidence in this case. 5. The occurrence was deposed by PW1. His evidence shows that on 06.11.2000 at 7.45 p.m., the accused came to his house with MO1 and informed his intention to travel with PW1 in his motor bike as a pillion rider. Accordingly, the revision petitioner and PW1 were proceeding through the road and when they reached at Kaliyar, a lonely place, the revision petitioner assaulted him with MO1 on the right side head and as a result, he fell down. At that time, PW1 caught the revision petitioner, but he tried to snatch his gold chain from his neck. He again made an attempt to snatch money from his pocket. Both of them fell down and PW1 took back the gold chain from the revision petitioner. At that time, a bus came there and PW2 and PW3 intervened. Crl. R.P. No.523 of 2005 5 Subsequently, PW1 gave Ext.P1 statement to the Police. On the basis of that, Police registered a crime. PW1 also identified MO1. These witnesses were cross examined by the defence counsel. A perusal of Ext.P1 and the oral testimony of PW1, it is clear that there was no allegation of attempt to commit theft or intimidation for snatching the gold chain. Therefore, for attracting the offence under Sec.394, the ingredients mentioned for robbery have to be properly proved by the prosecution. 6. The independent witnesses present there, PW2 and PW3, deposed that when they reached there, the motor bike was found lying on the middle of the road and revision petitioner and PW1 were making a scuffle there. Nothing has been stated by these two witnesses regarding the overt act and the attempt made by the revision petitioner for snatching the gold chain. PW6, the doctor who treated PW1, was examined in the trial court and marked Ext.P2 wound certificate. His evidence shows that Joshy Paul (Varghese) was admitted in the hospital. Therefore, a perusal of the documents shows that the accused committed an offence punishable under Sec.324 Crl. R.P. No.523 of 2005 6 IPC alone. Section 390 will apply only in such a case where, theft, wrongful restraint or fear is caused for the purpose of achieving the end of the object of commissioning theft or carrying away stolen property. Such an allegation is not found in the oral and documentary evidence submitted by the prosecution. The word 'for that end' mentioned under Sec.390 IPC has been explained by the Apex Court in several decisions. The word ' for that end' is very crucial which distinguish a case of theft accompanied by assault. Apex Court in **Mohinder Singh v. State of Haryana [(1996) 4 crimes 11]** explained the position, the object of falsification in committing theft. The trial court and the appellate court failed to appreciate that position. A perusal of the evidence shows that the accused committed only the offence under Sec.324 IPC and not under Sec.394 IPC. In the result, the conviction under Sec.394 IPC is set aside and the revision petitioner is sentenced under Sec.324 IPC. Revision petitioner is a coolie worker and is now living with his wife and child in a peaceful Crl. R.P. No.523 of 2005 7 atmosphere without making any problems. He is the only person to look after them. Revision petitioner had already undergone imprisonment for eight months, that itself is sufficient to meet the ends of justice. Therefore, the revision petitioner is sentenced to pay a fine of Rs.5,000/(Rupees five thousand only) under Sec.324 IPC in default of payment of fine, imprisonment for six months. Learned counsel submitted that the revision petitioner had already deposited Rs.2,000/- (Rupees two thousand only) in the trial court. Therefore, it is sufficient to pay the balance amount ie, Rs.3,000/- (Rupees three thousand only) as fine amount. The revision petitioner is also directed to surrender in the trial court forthwith to undergo the modified sentence if otherwise, the learned Magistrate shall issue non bailable warrant against him. ## Sd/- **P.D. RAJAN, JUDGE** NS/17/06/2016 / True Copy / P.A. To Judge